2003/06/11 - Pl. ÚS 11/02: Judges´Salaries

11 June 2003

HEADNOTES

If

the Constitutional Court, a constitutional body, that is, a public

authority, is not itself to act arbitrarily, it must feel itself to be

bound by its own decisions, and its jurisprudence may depart therefrom

only under certain circumstances.  Since the Constitutional Court,

rather it above all, is obliged to respect the bounds of the

constitutional state, in which arbitrary conduct by public authorities

is strictly forbidden, the Constitutional Court is also subject to the

prohibition on arbitrary conduct.  The above postulate can also be seen

as an essential attribute of a democratic state governed by the rule of

law. (Art. 1 para. 1 in conjunction with Art. 9 para. 2 of the Czech

Constitution).
 

The

first circumstance in which the Constitutional Court may depart from

its own jurisprudence is a change of the social and economic relations

in the country, a change in their structure, or a change in the

society’s cultural conceptions.  A further circumstance is a change or

shift in the legal environment formed by sub-constitutional legal norms

which in their entirety influence the examination of constitutional

principles and maxims without, of course, deviating from them but, above

all, not restricting the principle of the democratic state governed by

the rule of law (Art. 1 para. 1 of the Czech Constitution).  A further

circumstance allowing for changes in the Constitutional Court’s

jurisprudence is a change in, or an addition to, those legal norms and

principles which form for the Constitutional Court its binding frame of

reference, that is, those which are contained in the Czech Republic’s

constitutional order, assuming, of course, that it is not such a change

as would conflict with the limits laid down by Art. 9 para. 2 of the

Czech Constitution, that is, they are not changes in the essential

attributes of a democratic state governed by the rule of law.

Pay relations of judges in the wider sense should be a stable

non-reducible quantity, not a shifting factor with which the

governmental grouping of the moment can engage in trade-offs, for

example, because they consider judges’ salaries to be too high in

comparison with the salaries of state employees or of other professional

groups.  In other words, if it is acceptable for the principle of

equality to apply in the sense mentioned above as regards an

exceptional, economically justified reduction in salary for all, the

equality of all above-mentioned groups as regards the final salary level

cannot be accepted (not even as a target category).  The striving

toward such equality departs from the bounds of constitutionality; it is

a political aim which finds no support in the constitutionally

conceived principle of equality.  In its material sense, this principle

finds its bounds in the expression, “similar things should not be

arbitrarily subject to different rules, but also unequal things should

not be arbitrarily subject to the same rules”.  The principle of

equality cannot be conceived of as the leveling of outcomes, for it must

be interpreted as a guarantee of equal initial opportunity.  The

legislature evidently did not, however, respect the principle of

equality as interpreted in this manner.


 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC
 

The

Constitutional Court Plenum decided 11 June 2003 on the petition

proposing the annulment of the word “judges” from 1 of Act No. 416/2001

Coll., on the Withdrawal of the Additional Salary Payment for the Second

Half of 2001 and the Designation of the Level of the Additional Salary

Payment for the First and Second Halves of 2002 in relation to

Representatives of State Power and of certain State Bodies, Judges,

State Attorneys, and Members of the Presidium of the Securities

Commission, Representatives of the Public Protector of Rights, and

Members of the Bank Council of the Czech National Bank as follows:


The

word “judges” in § 1 of Act No. 416/2001 Coll., on the Withdrawal of

the Additional Salary Payment for the Second Half of 2001 and the

Designation of the Level of the Additional Salary Payment for the First

and Second Halves of 2002 in relation to Representatives of State Power

and of certain State Bodies, Judges, State Attorneys, and Members of the

Presidium of the Securities Commission, Representatives of the Public

Protector of Rights, and Members of the Bank Council of the Czech

National Bank, is annulled due on the day this judgment is published in

the Collection of Laws.

 


REASONING
 

I.
 

On

8 April 2002, the Chairwoman of Panel 13 of the Brno Municipal Court,

submitted, pursuant to Art. 95 para.2 of the Constitution, in the

version in effect until 31 May 2002, and § 64 para. 4 of Act No.

182/1993 Coll., on the Constitutional Court, (as of 1 January 2003, this

provision is contained in 64 para. 3 of this Act, hereinafter “Act on

the Constitutional Court”), a petition proposing the annulment of the

word, “judges”, from § 1 of Act No. 416/2001 Coll., on the Withdrawal of

the Additional Salary Payment for the Second Half of 2001 and the

Designation of the Level of the Additional Salary Payment for the First

and Second Halves of 2002 in relation to Representatives of State Power

and of certain State Bodies, Judges, State Attorneys, and Members of the

Presidium of the Securities Commission, Representatives of the Public

Protector of Rights, and Members of the Bank Council of the Czech

National Bank. 

 

That

submission was connected to a proceeding on a complaint submitted by a

judge of the Brno Municipal Court against the Czech Republic – Brno

Municipal Court for the payment of an additional salary payment for the

second half of 2001 in the amount of 53 100 Kč and for reimbursement of

costs of the proceeding before the Brno Municipal Court, file no. 13 C

27/2002. 

 

As

a consequence of the above-mentioned provision of Act No. 416/2001

Coll., the complainant was not paid the additional salary for the second

half of 2001 in the amount to which he is entitled under § 4 para. 2 of

Act No. 236/1995 Coll, on the Salary and further Requirements connected

with the Holding of Office as a Representative of State Power or of

Certain State Bodies, or a Judge, as amended.  I

 

n

that proceeding the Chairwoman came to the conclusion that the

above-cited provision of Act No. 416/2001 Coll., which should be applied

in the resolution of the matter, is in conflict with Art. 1 of the

Constitution of the Czech Republic (currently Art. 1 para. 1 following

the amendment introduced by Constitutional Act No. 395/2001 Coll., which

entered into effect on 1 June 2002) and Art. 2 para. 1 of the Charter

of Fundamental Rights and Basic Freedoms (hereinafter “the Charter”), as

it represents a considerable encroachment upon judicial independence

guaranteed by Art. 82 para. 1 of the Constitution of the Czech

Republic. 

 

She

stated that the Constitutional Court had already come to the same

conclusion in its judgment of 15 September 1999, published as No.

233/1999 Coll. (file no. Pl. ÚS 13/99, Collection of Judgments and

Rulings of the Constitutional Court, Vol. 15, p. 191 and following), in

which the Court annulled the word, “judges” from § 1 of Act No. 268/1998

Coll., on the Withdrawal of the Additional Salary Payment for the

Second Half of 1998 for Representatives of State Power and of certain

State Bodies, Judges, State Attorneys, and Members of the Presidium of

the Securities Commission, and announced the proposition of law that the

deprivation of additional pay constitutes a threat to the principle of

judicial independence. 

 

Although

in two subsequent judgments, announced on 3 July 2000 and published as

No. 320/2000 Coll. and No. 321/2000 Coll. (file no. Pl. ÚS 18/99 and Pl.

ÚS 16/2000, the Collection of Judgments and Rulings of the

Constitutional Court, Vol. 19, at p. 3 and following, and at p. 23 and

following), it refused, on the merits, the petition proposing the

annulment of Act No. 287/1997 Coll., which supplements Act No. 236/1995

Coll., on the Salary and other Requirements connected with the Holding

of Office by Representatives of State Power and of Certain State Bodies,

and by Judges, as amended by Act No. 138/1996 Coll., and the word,

“judges”, in § 1 of Act No. 308/1999 Coll., on the Withdrawal of the

Additional Salary Payment for the Second Half of 1999 and the Second

Half of 2000 in relation to Representatives of State Power and of

certain State Bodies, Judges, State Attorneys, and Members of the

Presidium of the Securities Commission, still it announced the

proposition of law that the removal of salary from judges is possible

only in exceptional and isolated cases.
 


II.
 

At

the Constitutional Court’s request, the Chairman of the Assembly of

Deputies of the Czech Parliament, Prof. Ing. Vaclav Klaus, CSc., and the

Chairman of the Senate of the Czech Parliament, Doc. JUDr. Petr

Pithart, gave their views on the petition pursuant to § 69 para. 1 of

the Act on the Constitutional Court.
. . . .
 


III.
 

The

Constitutional Court proceeded in this case in accordance with § 68 of

Act No. 182/1993 Coll.  Since no grounds have been adduced for rejecting

the petition on preliminary grounds or for discontinuing the

proceeding, the Court verified whether Act No. 416/2001 Coll. had been

adopted and issued within the bounds of the competence laid down in the

Constitution and in the constitutionally prescribed manner.  It

ascertained that the contested statute was duly debated and adopted by

the legislative body, signed by the competent constitutional officials,

and promulgated in the Collection of Laws.  Accordingly, there was

nothing to prevent the adjudication of the contested statutory

provisions in terms of their conformity with the constitutional order of

the Czech Republic.
 


IV.
 

The Constitutional Court has already dealt with the given issue three times.
 

In

its 15 September 1999 judgment, file No. Pl. ÚS 13/99, the

Constitutional Court Plenum decided on the petition submitted by the

Divisional Court for Prague 4 proposing the annulment of Act No.

268/1998 Coll., on the Withdrawal of the Additional Salary Payment for

the Second Half of 1998 for Representatives of State Power and of

certain State Bodies, Judges, State Attorneys, and Members of the

Presidium of the Securities Commission:
 

“On

the day this judgment is published in the Collection of Laws, the word,

“judges” shall be annulled from the text, ‘Representatives of state

power and certain state bodies,1) judges,2) state attorneys,3) and

members of the Presidium of the Commission for Securities4) shall not be

entitled to a further pay5) for the second half of 1998’ in § 1 of Act

No. 268/1998 Coll, on the Withdrawal of the Additional Salary Payment

for the Second Half of 1998 for Representatives of State Power and of

certain State Bodies, Judges, State Attorneys, and Members of the

Presidium of the Securities Commission. 

 

The

remaining part of the petition proposing the annulment of Act No.

268/1998 Coll. is rejected on the merits.”  The judgment was published

as No. 233/1999 Coll. 

 

A

qualified majority of the Plenum declared at the time that, although

the contested statute did not have any retroactive effect, that is, that

it did not violate the prohibition on retroactivity and did not deny to

entitled persons already acquired rights, in relation to judges its

adoption represented a violation of the constitutionally guaranteed

principle of judicial independence, arising from the system of the

separation of powers as a foundation of the democratic law-based state. 

I

 

n this regard, the Constitutional Court made reference to the Constitution of the United States of America.  I

 

t

was stated in the judgment that the principle of judicial independence

contains within itself a whole range of aspects, certain of which are of

a material character. 

 

Among

other things, the Constitutional Court also remarked that its decision

affects only judges of ordinary court, that is of district, regional,

and superior courts, the Supreme Court and the Supreme Administrative

Court, but not of the Constitutional Court, as by Act No. 236/1995

Coll., they are classified as “representatives” and not as “judges”,

despite the fact that they exercise judicial power and that Art. 82

para. 1 of the Constitution, concerning the independence of judges,

applies to them as well.
 

By

it 3 July 2000 judgment, file no. Pl. ÚS 18/99, the Constitutional Court

rejected on the merits the petition filed by the Brno Municipal Court,

which pursuant to § 35 para. 2 of Act No. 182/1993 Coll., was joined by

the Divisional Court for Prague 2 and the Pilsen-City District Court,

proposing the annulment of Act No. 287/1997 Coll., which supplemented

Act No. 236/1995 Coll., concerning Salary and further Requirements

connected with the Holding of Office as a Representative of State Power

or certain State Bodies or as a Judge, as amended by Act No. 138/1996

Coll. (during the course of the proceeding the petit was properly

amended to read more specifically as a proposal to annul § 4a of Act No.

236/1995 Coll., as amended by Act No. 287/1997 Coll., and the Prague 2

Divisional Court’s petition was formulated even more precisely, to

request that the word, “judges”, be deleted from the text,

“Representatives and judges shall not be entitled to an additional

salary payment for the second half of 1997”). 

 

The same petition was submitted as well by two judges of the District Court in Olomouc. 

 

By

its rulings of 24 August 2000, file no. Pl. ÚS 31/2000, and of 19

October 2000, file no. Pl. ÚS 30/2000, the Constitutional Court rejected

both as inadmissible because barred as res judicata (§ 35 para. 1 of

Act No. 182/1993 Coll.).
 

By

its rulings of 25 April 2000 and 5 May 2000, file no. Pl. ÚS 13/2000 and

file no. Pl. ÚS 18/2000, the Constitutional Court rejected as

inadmissible because barred by litispendence (§ 35 para. 2 of the Act on

the Constitutional Court) the petitions submitted by the Prague 2

Divisional Court and the Pilsen-City District Court. 

 

The

Constitutional Court stated in the reasoning of its 3 July 2000

judgment, file no. Pl. ÚS 18/99, published as No. 320/2000 Coll., that

judicial independence represents one of the fundamental democratic

values, and that without dispute material provision that judges receive

assists in securing it. 

 

In

particular, it is essential that some other state body not impinge upon

judicial pay, in whatever form, either arbitrarily or repeatedly. 

 

In

accord with the decisional practice of the European Court of Human

Rights, the Constitutional Court focused on the issue whether the denial

of the 14th salary payment to ordinary court judges was laid down in a

statute, whether it was directed at a legitimate goal, and whether it

was necessary in a democratic society. 

 

The

Constitutional Court affirmed that the statutory form of the

impingement into recognized rights was met and the adopted statute does

not have retroactive effect, and remarked that the legislative technique

employed in this case, namely the amendment of the original statute,

was more appropriate then a special and separate statute, as was the

case in other matters, but that this distinction was not important in

terms of constitutional law. 

 

As

concerns the issue of the legitimacy of the goal toward which the

withdrawal from judges of an additional salary payment was directed, the

Constitutional Court stated that it cannot disregard the difficult

social and economic reality in which the Czech Republic finds itself. 

 

Proceeding

from the assumption that ordinary court judges do not live in isolation

or in some sort of “legal and economic vacuum”, it expressed the view

that, one cannot take as unchanging dogma judges’ right to material

provision set in advance which cannot in any manner or under any

circumstance be modified by legislation, even though the principle still

applies, as was declared in the Constitutional Court’s previous

decision (No. 233/1999 Coll.), that the state is obliged to establish

the prerequisites for the independence of courts and to stabilize their

position as against the legislative and executive powers. 

 

In

the given matter, however, the legislative impingement affected the

material provision of the entire public sector, not just of courts, and

to judge that group dissimilarly, even though they are specially

protected by the constitutional principle of independence, would

constitute for them, in the given context, scarcely acceptable

preferential treatment.
 

In

its 3 July 2000 judgment, sp. zn. Pl. ÚS 16/2000, published as No.

321/2000 Coll., the Constitutional Court rejected on the merits the

Hradec Králové District Court’s petition (which was joined with that of a

secondary party, the Pilsen-City District Court) proposing the

annulment of the word, “judges”, from § 1 of Act No. 308/1999 Coll., on

the Withdrawal of the Additional Salary Payment for the Second Half of

1999 and the Second Half of 2000 in relation to Representatives of State

Power and of certain State Bodies, Judges, State Attorneys, and Members

of the Presidium of the Securities Commission, which reads

“Representatives of state power and of certain state bodies, judges,

state attorneys, and members of the Presidium of the Securities

Commission shall not be entitled to an additional salary payment either

for the second half of 1999 or the second half of 2000.” 

 

In

addition, two judges of the Olomouc District Court and judges of the

Ostrava District Court, of the Pilsen-City District Court, and of the

Brno Municipal Court, submitted the same petition. 

 

In

its 5 May 2000 ruling, file no. Pl. ÚS 18/2000, the Constitutional

Court dismissed the Pilsen-City District Court’s petition as

inadmissible because barred by res judicata (§ 35 para 2 of the Act on

the Constitutional Court). 

 

The

four remaining petitions were also dismissed as inadmissible as barred

by res judicata (§ 35 para 2 of the Act on the Constitutional Court) by

Constitutional Court rulings, of 24 August 2000, file no. Pl. ÚS

31/2000, of 19 October 2000, file no. Pl. ÚS 30/2000, of 1 September

2000, file no. Pl. ÚS 32/2000, and of 26 October 2000, file no. Pl. ÚS

27/2000.
 

After consideration

of the petition and when the Constitutional Court voted upon it, the

conception that was applied in the judgment published as No. 321/2000

Sb, (according to which where a legislative approach generally affected

the material provision of the public sector as a whole, to judge

specially only one group of persons paid by the state, judges, even

though the enjoy the higher degree of protection conferred by the

constitutional principle of independence, would constitute scarcely

acceptable preferential treatment) prevailed over that which was

asserted in judgment No. 233/1999 Coll., (proceeding from the view that

to deny judges further pay devalues one of the basic democratic values,

namely judicial independence, and represents an encroachment upon the

inherent right of judges, as a guarantee of their independence and of

legal certainty, that their pay not be diminished). 

 

On

the other hand the Constitutional Court distanced itself from the view

that judges’ salary should be a factor that shifts according to the

momentary conceptions of one governmental grouping or another. 

 

It

therefore looked upon the solution used in this case as an exceptional

act which could be acceptable only on serious grounds and only in

connection with a regulation of salaries in the entire sphere of state

representatives and employees that is proportionate on the whole. 

 

It

was solely in this overall connection that the impact of the State’s

financial difficulties can be allowed to affect judges’ salaries as

well.  I

 

t

is precisely in such circumstances that to admit an exception would

result in a violation of the constitutional principle of equality, on

the basis of which the entire field of state employees and

constitutional officials is subjected to this statutory scheme. 

 

Judges’

salaries are governed by Act No. 236/1995 Coll., according to § 3 para 2

of which the salary is determined as the product of a basis and a

salary coefficient set depending on the level of responsibility and

demanding nature of the duties performed. 

 

Under

§ 3 para 3, the basic salary is understood as the entirety of the

highest pay scale and the maximum amount of personal bonuses as laid

down by special enactment for employees of the ministries. 

 

The

amount of salary is then directly derived from the amount of pay

received by employees of state administrative bodies and this

connectedness of salaries, if it is once adopted as the principle for

the compensation of state employees, should be observed both in cases of

the valorization of the pay scales (for example, the 17% increase from 1

January 1999 which resulted in a pay raise for all state officials and

state employees, including judges) as well as when restricting the

amount of certain material perquisites. 

 

In

making its decision the Constitutional Court showed respect for the

Parliament, which, in adopting Act No. 308/1999 Coll., exercised its

legislative powers and, departing from what the state’s budget and its

economic situation allows for, included also judges into its

belt-tightening measures. 

 

It

took the view that to deny them a further salary payment cannot

threaten the independence of judges, especially due to the fact that it

constituted neither a surprising nor a deep intrusion into their

material provision. 

 

The

independence of judges is also characterized by a whole host of

constitutional guarantees, such as appointment to office for an

unlimited period of time or the prohibition of transferring or recalling

judges against their will. 

 

To

rank this merely partial change in judges’ material provision above the

other attributes of judicial independence could, on the other hand,

diminish citizen’s trust in independent justice. 

 

At

the same time as the additional salary payment was taken from judges,

it was taken from officials in the executive and legislative branches as

well, thus preserving the balance of the classical conception of the

separation of powers. 

 

Moreover,

no rational grounds exist for exempting judges from this general

intrusion by the state, especially when by Government Orders No.

248/1998 Coll., which modifies Government Order No. 253/1992 Coll., on

the Pay Relations of Employees of State Administrative Bodies, of

certain further Bodies and of Municipalities, as subsequently amended,

and No. 126/2000 Coll., which modifies Government Order No. 253/1992

Coll., on the Pay Relations of Employees of State Administrative Bodies,

of certain further Bodies and of Municipalities, as subsequently

amended, decreases in the additional salary payments had already

occurred for employees of state administrative bodies, of certain

further bodies and of municipalities.
 


V.
 

1.

After the Brno Municipal Court submitted the petition currently under

consideration proposing the annulment of the word, “judges”, in § 1 of

Act No. 416/2001 Coll., in addition the Prague 1 Divisional Court, the

Prague 2 Divisional Court, the Prague 5 Divisional Court, and the

Prague-West District Court also submitted the same petition, thus they

gained the status as secondary parties in this proceeding.  Pursuant to §

43 para. 1, lit. e) and para. 2, lit. b) of the Act on the

Constitutional Court (§ 35 para. 2 of the Act on the Constitutional

Court), the Constitutional Court by its rulings (of 13 August 2002, 26

August 2002, 6 February 2003 a 27 May 2003, file nos. Pl. ÚS 13/02, Pl.

ÚS 18/02, Pl. ÚS 3/03, and Pl. ÚS 11/03) rejected these four petitions

as inadmissible, as the Constitutional Court already has the same matter

before it.
 

In contrast to

the Brno Municipal Court, which in its petition emphasized encroachment

upon judicial independence, these other courts objected also to the

infringement of the principles of the prohibition of retroactivity and

the protection of acquired rights.
 

So

far as concerns the asserted retroactivity of Act No. 416/2001 Coll.,

which came into effect on 28 November 2001, as was already stated in

judgment No. 233/1999 Coll., concerning Act No. 268/1998 Coll., the

statutory conditions for the right to a further paycheck to arise for

the second half of 1998 follow from § 4 para 2 of Act No. 236/1995

Coll., as amended by Act No. 138/1996 Coll., namely either the actual

performance of duties for a period of at least 90 calendar days in that

half year and further the representative’s continuance in office until

30 November 1998 or, for a judge, continuance in employment relations

until 31 December 1998.  Thus, entitled persons would only gain the

right to a further salary payment upon the fulfillment of the last

stated conditions, that is, at the earliest on 30 November 1998, in the

case of representatives, and on 31 December 1998, in the case of judges,

which in consequence means that the contested statute, which does not

connect any legal effects with any sort of legally relevant facts

occurring prior to its coming into effect, does not operate

retrospectively, and since, as of 19 November 1998, the day it came into

effect, nobody had acquired an individual right to a further salary

payment, it could not have intruded upon any “acquired” rights.  The

same was true of Acts No. 287/1997 Coll., which came into effect on 28

November 1997, of No. 308/1999 Coll. (as far as concerns judges), which

entered into force on 3 December 1999, as well as of Act No. 416/2001

Coll., which entered into force on 28 November 2001.  From the

perspective of the temporal effect of Acts No. 287/1997 Coll., No.

268/1998 Coll., and No. 308/1999 Coll., which withdraw from the

enumerated persons, judges included, the further salary payment only for

the second half of the years 1997 through 2000, § 4 para 2 lit. a) of

Act No. 236/1995 Coll., as amended by Act No. 138/1996 Coll., was of

importance, as it conditioned the acquisition of a claim to a further

salary payment for the second half of the year, as was already stated,

in the case of representatives, upon the performance of duties until 30

November and, in the case of judges, the continuance of employment

relations until 31 December.  In contrast, Act No. 416/2001 Coll., which

withdraws from the indicated persons a further salary payment not only

in the full amount for the second half of 2001, but also for both half

years of 2002 (but only one half of the payment for each half year),

lit. b) of this statutory provision plays a role, according to which the

claim for an additional salary payment does not arise in the first half

of the calendar year for representatives who finish their duties before

31 May, and for judges whose employment relations terminate prior to 30

June.
 

Act No. 416/2001

Coll. has no retroactive effect, so that it cannot be criticized as an

intrusion into acquired rights.  The Constitutional Court expressed its

view on this issue, for example, in its judgment of 28 February 1996,

file no. Pl. ÚS 9/95, published as No. 107/1996 Coll. and also reported

in Vol. 5 of the Collection of Judgments and Rulings of the

Constitutional Court, on p. 107 and following, in which it rejected on

the merits a petition filed by a group of Deputies proposing the

annulment of Act No. 34/1995 Coll., which supplemented Act No. 76/1959

Coll., concerning certain Service Conditions for Soldiers, as

subsequently amended, and Act No. 33/1995 Coll., which amends and

supplements Act of the Czech National Council No. 186/1992 Coll.,

concerning Services Relations of Members of the Czech Police, as

subsequently amended, and Act No. 100/1970 Coll., concerning Services

Relations of Members of the National Security Corps, as subsequently

amended.  The petitioners asserted in their petitions that the contested

acts repealed acquired rights, for they withdrew from a certain group

of citizens their statutorily recognized claims to service contributions

or claims to contributions for service.  According to the

Constitutional Court, one cannot invoke the protection of acquired

rights in relation to the removal or diminution of those benefits, which

mature only after the new legal rules were to come into effect.  For

even such rights to enjoy protection would mean that it would never be

possible in the future to narrow them, regardless of, for example, the

economic situation of the state, etc.
 

The

Constitutional Court continues to adhere to its position and proceeds

on the basis of it even in this matter, as the mentioned benefits are

comparable in character to the further pay under Act No. 236/1995 Coll.

(the “13th and 14th pay”).
 

2. 

The Constitutional Court was further obliged to raise the issue as to

whether the prerequisites exist for continued adherence to the

proposition of law which it announced in its two most recent judgments

concerning an analogous problem.
 

First

and foremost, it must be stated that, if the Constitutional Court, a

constitutional body, that is a public authority, is not itself to act

arbitrarily, it must feel itself to be bound by its own decisions, and

its jurisprudence may depart therefrom only under certain

circumstances.  Since the Constitutional Court, rather it above all, is

obliged to respect the bounds of the constitutional state, in which

arbitrary conduct by public authorities is strictly forbidden, the

Constitutional Court is also subject to the prohibition on arbitrary

conduct.  The above postulate can also be seen as an essential attribute

of a democratic state governed by the rule of law. (Art. 1 para. 1 in

conjunction with Art. 9 para. 2 of the Czech Constitution).
 

The

first circumstance in which the Constitutional Court may depart from

its own jurisprudence is a change of the social and economic relations

in the country, a change in their structure, or a change in the

society’s cultural conceptions.  A further circumstance is a change or

shift in the legal environment formed by sub-constitutional legal norms

which in their entirety influence the examination of constitutional

principles and maxims without, of course, deviating from them but, above

all, not restricting the principle of the democratic state governed by

the rule of law (Art. 1 para. 1 of the Czech Constitution).  A further

circumstance allowing for changes in the Constitutional Court’s

jurisprudence is a change in, or an addition to, those legal norms and

principles which form for the Constitutional Court its binding frame of

reference, that is, those which are contained in the Czech Republic’s

constitutional order, assuming, of course, that it is not such a change

as would conflict with the limits laid down by Art. 9 para. 2 of the

Czech Constitution, that is, they are not changes in the essential

attributes of a democratic state governed by the rule of law.

3. 

The Constitutional Court has taken the view that the matter under

consideration must be adjudged in the light of changes in the legal

order which have occurred since the Court’s announcement of its judgment

in the matters Pl. ÚS 16/2000 and Pl. ÚS 18/99, that is, since July,

2000 until the present.  Although the Constitutional Court was

considering a statute issued in 2001, in its adjudication, it is bound

by the maxim that for a court, and for the Constitutional Court as well,

what is decisive is the state of affairs at the time the decision (here

the judgment) is announced.
 

Sec.

34 para. 4 of Act No. 236/1995 Coll. was amended, with effect from 1

January 2003, by Act No. 420/2002 Coll., which Shortens the Period

during which State Officials and Officials of Certain State Bodies,

Judges, and State Attorneys are Paid during Temporary Incapacity to

Carry Out the Duties and which lays down certain Measures in Sickness

Insurance (Care) and in Pension Insurance.  The amendment provides that

officials, the performance of whose duty is governed by separate legal

enactments and by the Labor Code, and judges, who have been declared

temporarily incapable of carrying out their duties, are entitled to pay

for a period not to exceed 20 work days during the same incapacity to

carry out their duties or, in the case of repeated temporary incapacity

to carry out duties, occurring in a single calendar year during the same

period.  On the grounds and under the circumstances laid down in the

first sentence, other officials are entitled to pay for a period not to

exceed 30 calendar days.
 

Prior

to the entry into effect of Act No. 420/2002 Coll., that is until 31

December 2002, § 34 para. 3 of Act No. 236/1995 Coll. provided that both

state officials and judges are entitled to pay regardless of the period

of time during which they are temporarily unable to carry out their

duties and during which they would otherwise be entitled, pursuant to

separate legal enactments, to sickness insurance payments for a 6 month

period.
 

Act No. 425/2002

Coll., which lays down exceptional measures for 2003 in determining the

level of pay and certain of expenses connected with the performance of

their duties by state officials and officials of certain state bodies,

judges and state attorneys, and which lays down the level of additional

salary for these persons for the first and second halves of 2003,

entered into effect on 1 October 2002.  Section 1 of that Act provides

that the level of base pay attained as of 31 December 2002 shall serve

for determining the pay and reimbursement for expenses connected with

the performance of duties in 2003 in relation to the enumerated

officials and judges.  As a consequence of the legal changes in the pay

scale and additional personal payments implemented for employees of the

ministries with effect following 31 December 2002, the base pay did not

rise in mentioned year.  Pursuant to § 2 of the Act, the additional pay

to which the same persons are entitled in 2003 pursuant to special

enactments is cut in half.  Sec. 3 excludes the application, during the

period 1 January 2003 to 31 December 2003, of § 3 para. 3 of Act No.

236/1995 Coll., on the Salary and other Requirements connected with the

Holding of Office by Representatives of State Power, of Certain State

Bodies, and by Judges, as amended by Act No. 309/2002 Coll.
 

At

the same time, it is clear from the explanatory report on the bills for

both of the above-mentioned acts that the proposers’ aim consisted in

“the maintenance of a comparable status for particular groups” of

persons, that is state employees, state officials, and judges, whereas

those proposing the statute considered the special status of judges, so

far as the level of compensation is concerned, to be unjust and

disproportionate.

4.  In the Constitutional Court’s view, the

indicated changes in the statutory framework relating to judges’ pay

relations has exceeded the constitutional limits for the acceptability

of an “exceptional” act which results in depriving judges of further

pay, in the way as defined in the Constitutional Court’s judgment No.

Pl. ÚS 16/2000, published as No. 321/2000 Coll., so that it was

necessary to proceed on the basis of the argument of principle which the

Constitutional Court elucidated in its judgment No. Pl. ÚS 13/99,

published as No. 233/1999 Coll.
 

If

in entirely exceptional circumstances the principle of equality may be

accentuated in the area of restrictions in the compensation of state

employees, constitutional officials, and judges in preference to the

principle of the independence of judges as conceived in its entirety,

the relation of these two principles does not apply generally, once and

for all, and as a given in all circumstances.  On the contrary, pay

relations of judges in the wider sense should be a stable non-reducible

quantity, not a shifting factor with which the governmental grouping of

the moment can engage in trade-offs, for example, because they consider

judges’ salaries to be too high in comparison with the salaries of state

employees or of other professional groups.  In other words, if it is

acceptable for the principle of equality to apply in the sense mentioned

above as regards an exceptional, economically justified reduction in

salary for all, the equality of all above-mentioned groups as regards

the final salary level cannot be accepted (not even as a target

category).  The striving toward such equality departs from the bounds of

constitutionality; it is a political aim which finds no support in the

constitutionally conceived principle of equality.  In its material

sense, this principle finds its bounds in the expression, “similar

things should not be arbitrarily subject to different rules, but also

unequal things should not be arbitrarily subject to the same rules”. 

The principle of equality cannot be conceived of as the leveling of

outcomes, for it must be interpreted as a guarantee of equal initial

opportunity.  The legislature evidently did not, however, respect the

principle of equality as interpreted in this manner.
 

The

Constitutional Court adjudged the contested part of the statute from

the just-mentioned perspective and has come to the conclusion that it is

in conflict with Art. 1 para. 1, in conjunction with Art. 82 para. 1 of

the Constitution, from which flows the state’s duty to ensure judges

material independence, as a guarantee of impartial and fair

decision-making on the rights of persons.  It inferred a conflict with

these constitutional provisions in adjudging the contested part of the

statute in the context of the above-stated new legal framework, which in

its totality could represent a genuine threat to judicial independence,

with all the negative consequences that entails for the protection of

persons’ private rights.  The Constitutional Court has further come to

the conclusion that the contested part of the statute is in conflict

with Art. 1 para. 1 of the Charter, which provides for equality in

rights, as it deduced that, in the given case, the legislature utilized

the same employment relations to regulate different professional

categories, with the goal of approaching toward a leveling of results,

and the Constitutional Court viewed this goal as illegitimate.
 


VI.
 

n

light of the above-mentioned grounds, the Constitutional Court has

therefore decided, pursuant to § 70 para. 1 of the Act on the

Constitutional Court, on the annulment, as of the day this judgment is

published in the Collection of Laws, of the word, “judges” in § 1 of Act

No. 416/2001 Coll., on the Withdrawal of the Additional Salary Payment

for the Second Half of 2001 and the Designation of the Level of the

Additional Salary Payment for the First and Second Halves of 2002 in

relation to Representatives of State Power and of certain State Bodies,

Judges, State Attorneys, and Members of the Presidium of the Securities

Commission, Representatives of the Public Protector of Rights, and

Members of the Bank Council of the Czech National Bank, due to its

conflict with Art. 1 para. 1, in conjunction with Art. 82 para. 1 of the

Constitution and with Art. 1 para. 1 of the Charter.

Notice:  Constitutional Court decisions may not be appealed.

Brno, 11 June 2003
 


 


Dissenting opinion

of Constitutional Court Justices P.V. and M.V.

We voted against the annulment of the word, „judges“ from § 1 of Act No. 416/2001 Coll., for the following reasons:

1) We find no grounds which required the Constitutional Court to depart

from the proposition of law it stated in its judgment published as No.

321/2000 Coll. in the same matter, that is, to judge specially only one

group of persons paid by the state, judges, even though they enjoy the

higher degree of protection afforded by the constitutional principle of

independence, would constitute scarcely acceptable preferential

treatment of one group.  The failure to pay them an additional salary

installment definitely cannot threaten the independence of judges.  On

the one hand, this is neither a surprising nor a deep intrusion into

their material provision; first and foremost, however, the independence

of the judicial status is sufficiently guaranteed by other institutes. 

On the contrary, to emphasize that the diminution of the financial

compensation for the performance of their duties can have an influence

on judges’ independence, might give rise, on the part of the public, to

justified doubts as to whether the judiciary is independent, as well as

concerning the basis of judicial independence.  Summarily stated, we do

not consider that a restriction on compensation, applied equally to all

persons paid from public funds, can in any way give grounds for

concluding that the compensation of judges has perhaps become the

subject of accidental or even intentional manipulation on the part of

the executive or legislative branches.
 

2)

We consider the reasons the Constitutional Court gave for departing

from its prior case-law, such as they are stated in the judgment of 11

June 2003, to be unpersuasive.  In particular, we consider as

opportunistic the argument concerning the statutory revisions which

occurred subsequently, that is only after the adoption of the provisions

reviewed by the Constitutional Court in this case.  While a subsequent

modification of the material provision can hardly, when this Court

engages in norm control, be considered as factual argumentation, in no

way does that take away from the fact that even now the provision for

judges in case of illness are above-standard.  In this part of the

reasoning, argued primarily on the basis of the equality principle, the

Court finds itself in a position where de facto it is demanding that

judges be ranked as a privileged group, without providing persuasive

reasons as to why such a privileged status passes muster.
 

3)

In a whole host of its decisions, the Constitutional Court reproached

the ordinary courts that they approached the application of law in a

formalistic manner and that, when resolving concrete cases, they were

not keeping an eye on the consideration that the resolution reached must

also be acceptable from the perspective of generally acknowledged

justice and decency (aequitas est mater exceptionis).  Now it has itself

decided at variance with this maxim.
 

4) 

Apart from the above-stated arguments of principle, we consider it

necessary also to say that the judgment does not provide a clear

response to the (by no means insignificant) question as to what the

actual impact of this decision is, or will be.  There is no disputing

the fact that the Court invalidates a legal enactment which, at the time

of judgment, had already accomplished its purpose and would not lay

down for the future any further binding rules of conduct.  If a judgment

of annulment has in principle effects ex nunc, then (in contrast to the

majority) we cannot deduce from § 71 para. 4 of Act No. 182/1993 Coll.,

on the Constitutional Court, that the subsequent duty of the state to

pay out the „withheld“ salary installment is a self-evident effect of

the annulling judgment.

Brno, 11 June 2003
 



Dissenting opinion
of Constitutional Court Justice M.H.

I

disagree with the 11 June 2003 decision of the Constitutional Court

Plenum that, on the day it is published in the Collection of Laws, the

word, “judges”, in § 1 of Act No. 416/2001 Coll., on the Withdrawal of

the Additional Salary Payment for the Second Half of 2001 and the

Designation of the Level of the Additional Salary Payment for the First

and Second Halves of 2002 in relation to Representatives of State Power

and of certain State Bodies, Judges, State Attorneys, and Members of the

Presidium of the Securities Commission, Representatives of the Public

Protector of Rights, and Members of the Bank Council of the Czech

National Bank, shall be annulled. 

 

Accordingly, pursuant to § 14 of Act No. 182/1993 Coll., I write a separate opinion in respect of it.

The Constitutional Court has now decided for the fourth time on the withdrawal from judges of additional salary payments.
 

I

disagreed with the holding of the 15 September 1999 judgment, file no.

Pl. ÚS 13/99, published as No. 233/1999 Coll., according to which the

word, „judges“ in § 1 of Act No. 268/1998 Coll., on the Withdrawal of

the Additional Salary Payment for the Second Half of 1998 for

Representatives of State Power and of certain State Bodies, Judges,

State Attorneys, and Members of the Presidium of the Securities

Commission, was annulled on the day of the judgment’s publication in the

Collection of Laws, and I expressed my reservations in a separate

opinion in respect of it, which was appended to the judgment and

published also on p. 196 and following of Vol. 15 of the Collection of

Judgments and Rulings of the Constitutional Court.  I refer to them in

this case as well.  By its 3 July 2000 judgment, file no. Pl.ÚS 18/99,

published as No. 320/2000 Coll., the Court rejected on the merits a

petition proposing the annulment of § 4a of Act No. 236/1995 Coll.,

concerning Salary and further Requirements connected with the Holding of

Office as a Representative of State Power or certain State Bodies or as

a Judge, as amended by Act No. 287/1997 Coll., pursuant to which an

additional salary installment for the second half of 1997 was not due to

representatives of state power and judges, and by it judgment of the

same day, file no. Pl. ÚS 16/2000, published as No. 321/2000 Coll., the

Court rejected on the merits a petition proposing the annulment of the

word, „judges“ in § 1 of Act No. 308/1999 Coll., pursuant to which

representatives of state power and various state bodies, judges, state

attorneys and members of the Securities Commission were not entitled to

an additional salary installment either for the second half of 1999 or

for the second half of 2000.
 

I

agreed with both of these decisions, as they found that the

legislature’s intrusion into the sphere of judicial compensation was

reasonable from the perspective of the state’s economic situation, was

proportionate, and was in conformity with the principle of equality.
 

I

am convinced that, in this case as well, the Constitutional Court

should have dismissed the petition on the merits, as it is no different

from the preceding matters.  The statutes on the withdrawal of further

pay installments from public officials, including judges, which have

been the subject of proceedings before the Constitutional Court, cover

the period from 1997 until 2002 without interruption.  Parliament was

led to adopt them on the basis of the same reasons, the possibilities

and situation of the state budget.  In my view it did so within the

bounds of the legislative powers which the Constitution endows it,

without at the same time disturbing the balance between the legislative

and the judicial branches.  There is nothing to indicate either that the

Parliament violated the principle of proportionality between the means

employed and the aim sought or that reasonable and justified grounds

were lacking for its adoption of the statute.  A democratic legislature

is empowered by the Constitution to make just such interventions.  The

sense for assessing and weighing values as a criteria for its

decision-making, in other cases a „powerful weapon“ of the

Constitutional Court, has misfired this time.
 

The

belt-tightening measures applied as well to judges, who do not make up

an exclusive elite for whom societal and economic reality would not

exist.  On the contrary, in observing the principle of equality, they

have both the legal and the moral duty to share together with others in

the burdens of economic restrictions.
 

Whereas

not even in its first judgment concerning this matter did the

Constitutional Court accept the objection of retroactivity and the

deprivation of acquired rights, focusing its reasoning instead

exclusively on the threat to judicial independence, in this judgment it

states as the grounds for its decision of annulment, in the first place,

changes in the legal order resulting from Acts No. 420/2002 Coll. and

No. 425/2002 Coll. and the worsening of the compensation scale for

judges, which have occurred since June 2000, when the Court issued its

two judgments denying petitions on the merits; in the end, however, it

reiterated the thesis that the withdrawal of additional salary

installments represents a threat to the independence of judges.
 

I

cannot concur with that view.  The contested Act No. 416/2001 Coll.,

related to the period ending on 31 December 2002, after which it

expired, whereas Acts No. 420/2002 Coll. and No. 425/2002 Coll. did not

take effect until 1 January 2003.  The assertion that statutes which

begin to apply and form legal relations only as of 1 January 2003 can

influence the situation which existed up until 31 December 2002 is not

compatible with my legal thinking.  I have always been against the

privilege which accorded representatives of state power and judges

claims to pay for a 6 month period during temporary incapacity to carry

out their duties as, according to my convictions, there are not

sufficient grounds, nor any that would be comprehensible and acceptable

for society, for according some advantages over others.
 

I

disagree with the assertion that the Constitutional Court is now faced

with a different point of departure.  I am convinced that no substantial

change of circumstance has occurred, not even as the result of the

temporary „freeze“ of basic salaries, and that the Constitutional Court

has decided on the same matter as in the previous cases.
 

The

withdrawal of an additional salary installment threatens neither the

independence of judges in the true sense of the word nor their material

independence; consequently, the conditions for their impartial and just

decision-making were not threated either.  In adopting Act No. 416/2001

Coll., by which it intruded upon the pay scale as well of judges, the

Parliament violated no constitutional act, thus, pursuant to § 70 para. 2

of the Act on the Constitutional Court, the petition should have been

rejected on the merits.  I expressed this view when the vote was held.

Brno, 11 June 2003
       
 


Dissenting opinion
of Constitutional Court Justice V.G.

I was led to write a separate opinion for the following reasons, in particular:
1)

Constitutional Court jurisprudence in this matter is not consistent.  I

am of the view that the grounds upon which the judgment published as

No. 321/2000 Coll. rested, have not changed in principle.
 

2) 

It is certain that the adequate material provision which judges receive

serves as well as a guarantee of their judicial independence.  However,

without any doubt, to take away a part of the „additional“ salary

payment, cannot, in and of itself, threaten the independence of judges. 

 

3)

Even though the judicial profession is very distinctive, it cannot be

made into an entirely privileged group.  This state’s current economic

situation, particularly in the area of public finance, compels it to

adopt many restrictions; in this respect, judges should also show

solidarity with the other groups of employees which are affected by this

restriction.
 

4) An

arrangement in which the removal of an additional salary payment (or a

part thereof) is effected nearly every year by means of a separate

statute can certainly be criticized.  This practice should be changed as

it does not contribute to the strengthening of the legal (and material)

certainty of those who are affected thereby.

Brno, 11 June 2003